128 Ill. App. 343 | Ill. App. Ct. | 1906
delivered the opinion of the court.
The motion to dissolve the temporary injunction must be considered as applying to the bill as amended, and two questions are presented for decision: First, whether the court erred in dissolving the injunction; and, second, whether it was error to dismiss the bill.
From the amended bill it appears that the demised premises were described in the lease as “the two-story frame residence and appurtenances thereunto belonging, known as No. 1794 36th street, in' the city of Chicago, aforesaid, to be occupied for dwelling and for no other purpose.” It also appears that the legal description of the lot on which the demised building is situated is lot 72 in Weston’s subdivision of block 1, etc., and that the lot next west of lot 72 is lot 71, in the same subdivision, which latter lot complainant claims to have been demised as part of what he calls the messuage. While it may be plausibly claimed that the demise of the dwelling house on lot 72 includes that lot, we cannot understand how it can be reasonably contended that it includes lot 71. Lot 71 is not described in the lease in terms, nor is it included in the description given. It could not pass as an appurtenance of lot 72, because “one piece of land held in fee, or by a lesser title, cannot be appurtenant to another piece of land.” St. Louis Bridge Co. v. Curtis, 103 Ill. 410, 418. The lease expressly provides that the demised premises, number 1794 36th street, shall be used solely for a dwelling. We do not regard the allegations that lots 71 and 72 were enclosed by a fence and that lot 71 was vacant, and that complainant cultivated vegetables on it, as of any significance as affecting complainant’s rights. If he could claim lot 71 because vacant and enclosed with lot 72, on the same principle he might claim his lease included all lots in the subdivision, if they were all enclosed by a' single fence, and except lot 72, vacant. He had no legal right under the terms of the lease, including the description of the demised premises, to cultivate vegetables on lot 71, and it is- not averred that the defendant Lutz, even knew of this. No entry has been made or threatened by any of the defendants on lot 72.
Considering the entire bill as amended, we are of opinion that the court did not err in dissolving the temporary injunction, which was granted on the original bill. But the bill, as amended, is not solely for an injunction. It is a bill to reform the lease, so that the description of the demised premises therein shall be as it is averred the. parties intended. It is averred in apt words that the parties to the lease made a mutual mistake in describing the premises intended to be demised and what their intention was, namely, to include lot 71 in the description, and reformation is prayed in accordance with the alleged intention. On proof of these allegations, which appear in the statement preceding this opinion, there can be no question of the power of the court to reform the lease as prayed. As said in Kelly v. Galbraith, 186 Ill. 593, 606, “That a court of equity has jurisdiction to reform a written instrument upon the ground of mistake is too well settled to need discussion.” The bill not being solely for an injunction, but also for reformation of the lease, it was error to dismiss the bill on dissolving the injunction. Hummert v. Schwab, 54 Ill. 142; Brockway v. Rowley, 66 ib. 99; Gillett v. Booth, 6 Ill. App. 423; Martin v. Jamison, 39 ib. 248, 256.
In Gibbs v. Davis, 168 Ill. 205, the court say: “The rule is, where a bill contains a prayer for special relief and also a prayer for general relief, the complainant may be denied a decree for the relief specially prayed for, and, under the general prayer, be granted such relief as he may be found entitled to have, under the allegations of fact made in the bill and the proof in support thereof.” Ib. 211. In this case there is in the amended bill not only a prayer for general relief, but a special prayer for reformation in accordance with the averments of the bill.
The court appears to have dismissed the bill of its own motion, as the record before us shows that the motion of the defendants was merely to dissolve the injunction, which motion operated only as an oral demurrer to the amended bill.
The decree, in so far as it dismisses the bill, will be reversed and the cause will be remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
